Opinion
No. CA 06-02418.
June 8, 2007.
Appeal from an order of the Supreme Court, Erie County (Kevin M. Dillon, J.), entered October 28, 2005 in a personal injury action. The order, among other things, denied plaintiffs motion seeking to set aside the jury verdict and seeking judgment in plaintiff's favor or, alternatively, a new trial.
ANDREWS, BERNSTEIN MARANTO, LLP, BUFFALO (RICHARD A. NICOTRA OF COUNSEL), FOR PLAINTIFF-APPELLANT.
GIBSON, MC ASKILL CROSBY, LLP, BUFFALO (C. CHRISTOPHER BRIDGE OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.
Present — Scudder, P.J., Gorski, Martoche, Smith and Green, JJ.
It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum: Supreme Court properly denied plaintiffs motion seeking to set aside the verdict in favor of defendants and seeking judgment in plaintiffs favor or, alternatively, a new trial. We agree with defendants that plaintiff is not entitled to judgment as a matter of law because the evidence raised "issues of fact and credibility to be resolved by the jury" ( Dolitsky v Bay Isle Oil Co., 111 AD2d 366, 366), and there is a valid line of reasoning and permissible inferences that could lead rational persons to the jury's conclusion, based on the evidence at trial, that Kevin Harnden, Jr. (defendant) was not negligent ( see generally Cohen v Hallmark Cards, 45 NY2d 493, 499). The court also properly refused to set aside the jury verdict as against the weight of the evidence and to grant a new trial because a fair interpretation of the evidence supports the verdict (see Teneriello v Travelers Cos., 264 AD2d 772, lv denied 94 NY2d 758; Nicastro v Park, 113 AD2d 129, 134). Although we agree with plaintiff that the court erred in allowing the police officer who investigated the accident to testify with respect to defendant's self-serving hearsay statement ( see Casey v Tierno, 127 AD2d 727, 728; Depena v Metropolitan Ambulance First Aid Corp., 1 Misc 3d 13, 14 [2003]), we conclude that the error is harmless ( see generally Beeley v Spencer [appeal No. 5], 309 AD2d 1303, 1305-1306).